The ruling last week by a Trump-appointed Federal judge in Texas halting a national prohibition on non-compete agreements shows that “judge shopping” is alive and well.
The order by Judge Ada Brown of Amarillo in the Northern District of Texas temporarily stopped the Federal Trade Commission (FTC) from enforcing an edict it promulgated this spring to go into effect next month. While not final, the judge’s ruling portends it will soon be converted into a permanent bar, triggering a lengthy appellate process that might lead to the Supreme Court in a couple of years or so.
The lawsuit by business groups, commenced the day after the FTC rolled out its proposition in April, was not unexpected. They have been battling with the Biden administration’s aggressive head of the FTC, the 35-year-old Columbia University law professor, Lina Khan, over a variety of efforts by the agency regulating and reining in business practices deemed antithetical to the interests of consumers.
This one was high on her agenda and that of President Biden dating back to the 2020 presidential campaign. It seems to be in harmony with a growing sentiment limiting or barring use of these restrictive devices that restrict future employment or start-up activities by employees that compete with their current jobs.
Minnesota became the fourth state last year to bar most non-competes, jointing an eclectic group of California, North Dakota, and Oklahoma, and it went a step further this year with legislation banning non-solicitation arrangements with independent contractors, too. That quartet is among about three dozen states that impose some limitations on non-compete agreements, compared to about two dozen that allow them with few or no restraints.
‘Shopping’ suits
The ruling by the Trump-appointed Texas judge came about due to the practice known as “judge shopping,” a device used occasionally by litigants but elevated to a recurring — and effective — strategic maneuver by the MAGA movement.
The prohibition of the FTC noncompete ban is hardly the only exercise by MAGA litigants of bringing cases before hospitable jurists aimed at restricting policies or laws of wide-ranging national impact.
Last year, anti-abortion advocates chose the same federal courthouse in Amarillo to file a lawsuit before Matthew Kaczmarek, a notoriously right-wing Trump-appointed judicial colleague of Judge Brown, to halt availability of the widely-used mifepristone pill to induce abortion that had been approved decades ago by the U.S. Food & Drug Administration (FDA). His ruling was slightly modified by a federal appellate court before it was reversed this spring by the Supreme Court. The high court did not address the merits but threw out the case on grounds that the physicians bringing the lawsuit lack standing, which leaves the FDA-approved pharmaceuticals available but subject to further litigation challenges by proper parties, possibly before that same Texas jurist, hoping for the same outcome.
But wait, there’s more.
In Mississippi earlier this summer another Trump-appointed judge, Luis Guirola Jr. curtailed the Biden administration’s regulation permitting federal funding for medical care for gender identity and sexual orientation matters.
That case, like the two others, was “shopped” around to a jurisdiction known to be unfriendly to the Biden administration and likely to produce the very result that occurred.
That makes it a clean sweep — 3-for-3 — in high profile successful MAGA “judge shopping” lately, in addition to several others earlier like the ones overturning the Biden administration’s student loan debt forgiveness program and invalidating its COVID-related travel mask mandate.
Liberal-leaning litigation
But “shopping” for friendly jurists, to be sure, is not confined to MAGA lawsuits. Liberal-leaning litigants have on occasion filed suits with national overtones, especially consumer class actions, in particular forums known to friendly to those claims as have some intellectual property claimants in pursuing trademark and copyright suits.
The MAGA movement has taken that practice to such new heights that it’s drawn the attention of the Judicial Conference, the body of leading federal jurists that establish policies for the federal tribunals.
After the furor over the mifepristone ruling by the Texas judge, the Judicial Conference devised a lukewarm proposal that newly-filed cases be assigned on a random basis consisting of all judges in the broader judicial district, one of 94 in the country, rather than from the particular courthouse within the district where the case is filed. The protocol is intended to broaden the pool of prospective jurists who might be assigned to the case.
But it’s a rather lame prophylactic because there are numerous districts in red states where a substantial majority of the jurists are ideologically-inclined to favor MAGA interests or, for that matter, liberal causes in some others like here in Minnesota.
The “judge shopping” tactic is less prevalent in the Minnesota state court system, where litigants can automatically remove a judge once from a case regardless of reason as well as the general requirement that suits challenging state laws or governmental practices be filed in Ramsey County, the seat of government. Those two protocols limit the use and effectiveness of “judge shopping” in cases involving state law issues here.
Absent closer scrutiny of the procedures for filing federal lawsuits in light of the gaping and growing ideological divide within the judiciary, bringing lawsuits affecting national interests is prone to be pursued in jurisdictions friendly to the party initiating the case.
Not only is the process that has curtailed the FTC’s non-compete bar a continuation of MAGA “judge shopping,” but its success bodes well for its increasing use in the future by litigants espousing conservative-oriented positions as well as those at the other end of the ideological spectrum, too.
It creates another taint in a judicial system already reeling from far too many of them these days.
Marshall H. Tanick is a constitutional and employment law attorney with the Twin Cities law firm of Meyer Njus Tanick.